Berg v. Obama

November 12, 2009

PHILIP J. BERG, ESQUIRE, APPELLANTv.BARACK HUSSEIN OBAMA, A/K/A BARRY SOETORO, A/K/A BARRY OBAMA, A/K/A BARACK DUNHAM, A/K/A BARRY DUNHAM; THE DEMOCRATIC NATIONAL COMMITTEE; THE FEDERAL ELECTION COMMISSION; THE SECRETARY OF THE COMMONWEALTH, PENNSYLVANIA DEPARTMENT OF STATE; PEDRO A. CORT&EACUTE;S, SECRETARY OF THE COMMONWEALTH IN HIS OFFICIAL CAPACITY; DIANNE FEINSTEIN, CHAIRMAN OF THE U.S. SENATE, COMMISSION ON RULES AND ADMINISTRATION IN HER OFFICIAL CAPACITY; U.S. SENATE, COMMISSION ON RULES AND ADMINISTRATION; AND DOES 1-50 INCLUSIVE

On Appeal from the United States District Court for the Eastern District of Pennsylvania, (D.C. Civil No. 2-08-cv-04083), District Judge: Hon. R. Barclay Surrick.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) October 26, 2009

Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges.

OPINION

Philip Berg, a lawyer acting pro se, filed this action challenging Barack Obama's eligibility to run for and serve as President of the United States. The District Court dismissed Berg's action on the grounds that he lacks standing and failed to state a cognizable claim.

I.

Before the 2008 presidential election, Berg sued then-Presidential candidate Barack Obama, the Democratic National Committee, and the Federal Election Commission, among others, alleging that Obama was ineligible to run for and serve as President because he was born in Kenya and therefore is not a "natural born citizen" within the meaning of Article II, Section 1, Clause 4 of the United States Constitution.*fn1 Berg sought, in relevant part, a declaratory judgment that Obama was ineligible, an injunction barring Obama from running for that office, and an injunction barring the Democratic National Committee from nominating him.

Although Berg brought a grab-bag of claims before the District Court, he appeals only the dismissal of those brought under the Natural Born Citizen Clause of the Constitution and 42 U.S.C. § 1983.*fn2 The District Court -- assuming the factual allegations made by Berg to be true for the purposes of the Defendants' motion to dismiss those claims -- dismissed the first claim because "[t]he alleged harm to voters [like Berg] stemming from a presidential candidate's failure to satisfy the eligibility requirement[s] of the Natural Born Citizen Clause is not concrete or particularized enough to . . . satisfy Article III standing," App. at 15, and dismissed the § 1983 claim because the "Natural Born Citizen Clause does not confer an individual right on citizens or voters," App. at 23.

Berg filed a notice of appeal and moved this court for an "emergency" injunction to stay the presidential election of November 4, 2008 pending resolution of that appeal. We declined to stay the election, noting that it appeared that Berg lacked standing and thus failed to show a likelihood of success on the merits.*fn3

Obama won the election and Berg subsequently made another "emergency" motion, asking this court to issue an order prohibiting the certification of electors by the governors of each state, to stay the members of the Electoral College from casting their votes for Obama, and to stay the counting of electoral votes in Congress. We also denied that motion, reiterating Berg's apparent lack of standing and also stating that Berg's lawsuit seemed to present a non-justiciable political question.

The electoral votes have since been cast without objection to Obama's qualifications by any members of Congress, and Obama was inaugurated. Berg nonetheless persists in this litigation.

II.

We have jurisdiction to consider this appeal under 28 U.S.C. &sect; 1291. Our review of the District Court's dismissal for lack of subject matter jurisdiction is plenary. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (citation omitted). Because the Defendants' challenge to subject matter jurisdiction was a "facial" one, we will accept the allegations in the complaint as true. Id. It is Berg's burden ...

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